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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO. 689 OF 2015
THE STATE
V
NORBERT WAIMBA
Wewak: Kirriwom J
2015: 6 October
2016: 18 May
CRIMINAL LAW – Sentence – With intent to do grievous bodily harm, did cause or do grievous bodily harm to victim – Victim was a policeman on duty – Use of bush knife to cut victim on left eye – Permanent injury to the left eye – 100% loss of vision to left eye - Prisoner under influence of homebrew - Strong deterrent sentence to show society’s abhorrence – Difference between GBH with intent and standard GBH offence in penalty regime – Criminal Code, s.315(b) & (d)
The prisoner slashed the left side eyebrow of the victim, a policeman on duty that night, when he went in to investigate a complaint at Yawasoro, Wewak resulting in the victim receiving serious injury to his left eye which went through several surgeries to correct it without success and lost 100% function of his left eye:
Held:
(1) Aggravating factors far outweigh mitigating factors by rendering early admission and prior good record next to meaningless.
(2) Attack of and permanent injury caused to a law enforcement officer on duty calls for a strong deterrent sentence to show the society’s abhorrence of such crimes.
Cases cited:
The State v Eddie John Naopa (2003) N2411
The State v Peter Pendin [2012] N4541
The State v Yale Simbrai [2008] N2886
The State v Tamurei Lawrence, Koloata James and Tobias Thomas [2006] N3117
The State v Nerious Pinda [2012] N4872
The State v Nipa Homolpi [2015] N5863
The State v Pokira Kadog [2015] N5904
The State v Brian Delga Kiap [2015] N6102
The State v Gera Aret [2015] N6103
Ure Hane v State [1984] PNGLR 105
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
Counsel:
J Kuvi, for the State
J Malambaul, for the Prisoner
REASONS FOR SENTENCE
18 May, 2016
1. KIRRIWOM, J: The prisoner pleaded guilty to a charge under section 315(b) and (d) of the Criminal Code which states that with intent to do grievous bodily harm, unlawfully did grievous bodily harm to one Jack Emmanuel. The difference between the charge under this section and a similar charge under section 319 is that the penalty provided under section 315(b) & (d) is higher than that under section 319. The former carries maximum penalty of life whereas the latter is not more than seven years.
2. The prisoner, his brother and some friends were drinking homebrew in their mother’s house at Yawasoro on the night of 24 December 2014. As they drank into the night, they began to become rowdy. They started chopping down banana trees besides the house belonging to the neighbor called Bruno.
3. Bruno was not happy with the behavior of the prisoner and his friends so went out to the road and saw police vehicle and
stopped it. He reported what the prisoner and his friends were doing.
4. The prisoner and friends observed Bruno talking to the police so they hid themselves amongst the banana groves and waited.
The victim, a member of the police went to investigate Bruno’s complaint when he was attacked by someone with a bush knife
who slashed him in the left face and eye. As the result of that attack, the victim is now totally blind on his left eye according
to the medical report dated 27 March 2015 of Port Moresby General Hospital ophthalmologist Dr. A. Kerk.
5. Photographs taken of the injury show a cut on the left corner of the left eye-brow with the wound extending into the corneo and
the pupil completely damaged. Victim suffered extensive blood loss as a result.
6. Amongst the depositions in the court file is a statutory declaration signed and dated 16 February 2015 by the prisoner in
which he claimed responsibility for what happened to the victim while exonerating three other suspects who were detained with him.
But in his record of interview conducted on 4th March 2015 when he was interviewed on a charge of attempted murder, he denied inflicting
the injury on the victim. However, he chose to plead guilty to the charge under section 315(b) &(d) of the Criminal Code.
7. In fact the depositions show that the prisoner and his brother argued with their mother and damaged her saucepan and used
foul language which the neighbor Bruno felt offended by it so in defence of their mother he argued with them. They wanted to fight
him and he ran away to the road and stopped the police patrol for help.
8. The section under which this charge is brought is worded as follows:
“315. Acts intended to cause grievous bodily harm or prevent apprehension.
A person who, with intent—
(a) to maim, disfigure, or disable any person; or
(b) to do some grievous bodily harm to any person; or
(c) to resist or prevent the lawful arrest or detention of any person,
does any of the following things is guilty of a crime:—
(d) unlawfully wounding or doing a grievous bodily harm to a person; or
(e) unlawfully attempting to strike a person with a projectile; or
(f) unlawfully causing an explosive substance to explode; or
(g) sending or delivering an explosive substance or other dangerous or noxious thing to a person; or
(h) causing any substance or thing referred to in Paragraph (g) to be taken or received by a person; or
(i) puts a corrosive fluid or destructive or explosive substance in any place; or
(j) unlawfully casts or throws a fluid or substance referred to in Paragraph (i) at or on a person, or otherwise applies any such fluid or substance to the person of a person.
Penalty: Subject to Section 19, imprisonment for life.
(emphasis added)
9. Personal particulars of the prisoner are as follows:
He comes from Nimieguai village, Hawaiin, Wewak, East Sepik Province. He was residing in Yawasoro with his mother whose house is in the government block at Yawasoro. He is 26 years old, single and was doing first year mechanical course at Yawasoro Vocational. He has three brothers and two sisters, father is deceased and mother is alive. He was apprehended on 8 January 2015. In the record of interview the prisoner told the arresting officer that he holds a certificate in welding which he graduated with in a technical school in Enga.
10. In mitigation the court was urged to take into account the following mitigating factors:
(a) That the prisoner pleaded guilty thereby saving court time and waste of money running a trial;
(b) This was the prisoner’s first offence against the law, otherwise he has a clean police record;
(c) Cooperated with police and made early admissions by way of a statutory declaration;
(d) He expressed remorse to the victim which may or may not mean anything particularly when such remorse is not accompanied by any kind of compensation to pay for the serious injury caused upon the victim.
11. Aggravating factors include:
(a) Attacking and injuring a law enforcement officer who is carrying out his duty is a serious matter that goes against the prisoner in a big way;
(b) Inflicting permanent injury resulting in 100% loss of vision in left eye is a serious aggravation;
(c) Using a bush knife to cut and injure the victim knowing full well that he was a law enforcement officer makes this case far more serious. Complete disrespect for law and law enforcement officers carrying out their work is becoming a serious concern because it is prevalent in the country;
(d) Excessive indulgence in home-brew consumption leading to unlawful conduct and misbehavior is becoming a serious concern too as it is also quite prevalent in the country.
(e) No compensation was paid which is quite un-Melanesian when someone does wrong to another in our Melanesian society.
12. This behavioral pattern of young men getting drunk with homebrew also referred to as “white soup” and either making nuisances of themselves or creating trouble for others is a big concern for everyone including law enforcing authorities. It is a phenomenon. Mr Malambaul for the prisoner said he could not find any authorities on this case. His friend Mr Kuvi referred me to The State v Eddie John Naopa (2003) N2411 which is a case similar to this and was dealt with right here in Wewak. Between 9 and 9:30pm the prisoner was amongst other boys at Brandi High School not far from the Girls Dormitory under a rain tree when they saw a group of girls or female students returning from a scripture union fellowship. They planned to get one of them. The victim was behind the other girls and they grabbed her. She struggled to free herself and her left fingers got cut with a knife that was used to threaten her. She fell into the drain but she managed to get out and she ran away. As she did the prisoner shot her on her right eye with a missile fired from his sling shot. Prisoner and his friends fled the scene and victim was taken to the hospital. The prisoner was later arrested and charged. The victim lost 100% vision of her right eye.
13. Kandakasi J imposed 5 years sentence in that case which is two years short of the maximum of seven years because the charge was brought under section 319. The prisoner in that case was very lucky to have escaped a much higher punishment of longer term of imprisonment which he would not have been so lucky if charged under section 315(b) & (d).
14. Mr Kuvi also referred to The State v Peter Pendin [2012] N4541 which is a case on point, decided by Kawi, J in Lae. Like in this case, the prisoner was initially charged with attempted murder
but through plea bargaining the charge was reduced to one under section 315(b) & (d) of Criminal Code, ie, with intent to cause
grievous bodily harm, did do grievous bodily harm to the victim. The prisoner in this case is said to have suffered a bout of schizophrenic
attack before and with a long tramontina bush knife at the gate PTC Compound Lae attacked a young girl going home inside the compound
by cutting her on the head and she ran with her plastic of shopping bag and he pursued her and swung again when she lifted her hand
to protect her head and he cut off her right hand. Had security guards not intervened he could have killed her. The attack was unprovoked.
15. Kawi J sentenced the prisoner to sixteen years while distinguishing two earlier cases, The State v Yale Simbrai [2008] N2886 decided by Sawong J in which his honour imposed two years sentence and The State v Tamurei Lawrence, Koloata James and Tobias Thomas
[2006] N3117 where a sentence of six years was imposed. While distinguishing those two cases his honour stated:
“25. In this case, I find the attack on the victim was unprovoked. It was perpetrated by a knife wielding madman on a harmless young innocent girl. Whilst, I take into consideration the early plea of guilty, and the expression of remorse and contrition showed by the prisoner, in my view, it is the gravity of the offence, characterized by the serious bodily injuries sustained by the young female victim, which will override any consideration based on an expression of remorse and contrition.
26. I find that this was a cold blooded spiteful and barbaric attack on an innocent harmless female victim. Whilst the rehabilitation of a prisoner is important in criminal sentencing, such objectives of rehabilitation and reformation of offenders such as this prisoner must not be allowed to obscure the consideration of deterrence and the protection of the public from the commission of such heinous and violent crimes. In my view, this case calls for a more hefty custodial punishment to be imposed.
27. On this basis, I will not follow the punishment imposed by Sawong, J in Yale Sambrai (N 2006) and Lay, J in Tamumei Lawrence (2007) N3117
28. In their respectful submissions both Counsel agreed that a custodial sentence in the range of 6 – 8 years is warranted. Having looked at the whole evidence, and the horrific injuries suffered by the young innocent girl, I am of the view that a more stiffer penalty should be imposed to serve as a deterrence to offenders and would be offenders. In my view, the Courts should now impose higher sentence for intentionally doing grievous bodily harm on others. This is to reflect the courts abhorrence at this kind of crimes committed by one person on another.
29. I will therefore impose a sentence of 16 years in hard labour....”
16. I don’t know if this sentence had been appealed but in my view given the gravity of the offence, committed upon an
innocent girl who is disfigured for life with reduced prospects of a more fulfilling life, nothing is better than a heavy sentence
to show the society’s abhorrence of such behaviour from some of its unworthy beings who should be locked away for good.
17. I also note that a month earlier in Kimbe, Kawi J also sentenced another prisoner in The State v Nerious Pinda [2012] N4872 to sixteen years on a charge under section 315(b) & (d) Criminal Code in which case his honour held:
“1. The aggravating factors significantly tip the scale in their favour. The mitigating factors have been rendered and watered down significantly.
2. The prisoner is sentenced to 16 years in hard labour less time spent in pre trial custody”
18. The prisoner in that case with two others armed themselves with long bush knives and waited on the road near a village in Talasea when they saw a vehicle come and stop and a man and his wife jumped down and started walking away to their destination. The prisoner and his friends followed them. The two couple seeing this hastened their pace but the prisoner and his friends chased them. The victim seeing a no win situation put his hands up in surrender. But the prisoner chopped his arm and cut him all over his body. Prisoner pleaded guilty, was a first offender and cooperated with police.
19. His Honour found that these aggravating factors far outweighed the mitigating factors:
“(a) A lethal weapon, a sharp bush knife which was sharpened on one
side was used to inflict the bodily injuries.
(b) The bush knife was swung with such savagery and ferocity that it
cut off and completely severed the victim’s left arm just above
the left elbow joint.
(c) The victim Stanley Reme is now permanently disfigured for the
rest of his life with the use of only one hand.
(d)The victim is unable to do manual jobs, such as working in his
garden or assisting his wife do house hold chores.”
20. There are also more recent cases mostly decided last year that I came across in my search on PNGInLaw which include The State v Nipa Homolpi [2015] N5863 (11/2/15), The State v Pokira Kadog [2015] N5904 (19/3/15), The State v Brian Delga Kiap [2015] N6102 (8/10/15) and The State v Gera Aret [2015] N6103 (12/10/15).
21. In The State v Nipa Homolpi (supra), it is a very serious case where a Village Court Clerk was attacked at a Village Court Hearing with a bush knife by several men who chopped him all over his body but the victim was saved by timely intervention of the Police who rushed him quickly to the hospital and they worked on him quickly to prevent what could have been a sure death for the victim. The prisoner is the brother of a deceased man whose wife the victim in this case was suspected of having affair with and made her pregnant which the husband knew about before he became sick and died.
22. The charge under section 315(b) & (d) reflected the gravity and seriousness of the complaint but with respect in my view the sentence failed to accord that serious view to the case when the court imposed a sentence of three years wholly suspended. When attack like this takes place where several knife-wielding men attack an official who could have died inside a law and order gathering or village court hearing, this calls for a strong deterrent punishment. The trial judge was not properly guided to appreciate the distinction between grievous bodily harm offence under section 319 which carries maximum of seven years imprisonment and offence under section 315(b) and (d) that attracts maximum of life imprisonment. One is more serious than the other.
23. Be that as it may, a month after the above case was decided, the National Court in The State v Pokira Kadog (supra) imposed a sentence of six years on the prisoner who stabbed his brother with a bush knife from behind several times because he suspected him of having an affair with his wife. The trial judge while rejecting the defence counsel for wholly suspended sentence and agreeing with the State counsel’s submission for sentence between 6 to 7 years imprisonment appreciated the distinction between section 315 and section 319 and said:
“10. It is important to remember that the offender has been convicted of unlawfully doing grievous bodily harm, with intent, under Section 315 of the Criminal Code. This is a different and more serious offence than the standard offence of unlawfully doing grievous bodily harm, without the element of intention, under Section 319 of the Criminal Code.”
24. While imposing six years the court said:
“13. Attacks of this nature, where the offender pleads guilty to a Section 319 grievous bodily harm offence (the maximum penalty for which is seven years imprisonment) and there is an identifiable cause and where the offence can be described as a crime of passion, usually result in a sentence of three to five years imprisonment, depending on the circumstances. See, for example, the cases summarised in The State v Justin Ipa (2008) N3439.
14. However, where the offender is convicted of the more serious Section 315 offence, sentences lower than four years are unusual and should only be considered if there is a high level of reconciliation between the victim and the offender, including payment of compensation. This is borne out by the sentences imposed in the following Section 315 cases, all of which have followed guilty pleas:
25. The trial judge made no mention of any of the two cases I cited earlier in the judgment that were decided by Kawi J in Lae
(The State v Peter Pendin) (supra) and in Kimbe (The State v Nerious Pinda) (supra) which are the only two cases that have imposed
sentences twice as much in duration as those cases he cited in his judgment.
26. Then there are these two cases in Mt Hagen decided four days apart by David J which are The State v Brian Delga Kiap &
Jeffery Kop (supra) (8/10/15) and The State v Gera Aret (supra)(12/10/15). In the first case, his honour sentenced the two prisoners
to seven years imprisonment, three years suspended for attacking another clansman with a bush knife by cutting him up badly following
dispute over land, one of them was a church pastor. In the latter case his honour sentenced the offender to eight years and six years
to be served concurrently on two counts of grievous bodily harm with intent to commit grievous bodily harm an offence under section
315(b) & (d) when he attacked two female victims (his wife and mother in law) when he chopped off his wife’s right arm
and inflicted some other bodily injuries on her and also chopped mother in-law on her arm, shoulder and back.
27. In sentencing the offender, the trial judge stated (as per headnote):
“2. Aggravating factors are; the offender used a dangerous and lethal weapon; multiple victims; both victims sustained serious life-threatening multiple injuries to vulnerable parts of their bodies including permanent amputation of the offender’s wife’s right arm; it was a vicious attack; both victims were unarmed and harmless; mother in-law attacked; the offender’s action was contemptuous of the Village Court or village leaders; the offender is a middle-aged adult who ought to have a moral conscience which should tell him what was right and wrong; and the offence was prevalent.”
28. From these sentences it is clear to me that the sentence for an offence under section 315(b) & (d) is between 6 years
and 10 years depending on the circumstances of each case although the highest is sixteen years which seem to be isolated from the
rest.
29. In this case early admission is always an effective mitigation capable of reducing punishment but when that is compared with
deliberately attacking a policeman in the execution of his duty when he went to investigate a complaint, that mitigating factor is
rendered next to nothing. It means nothing. Law enforcers and court officers must be respected when they are executing their functions.
The policeman injured in this case is now less one eye because of criminal act of the prisoner.
30. The sentence of the court here must reflect the society’s abhorrence and condemnation of those who have no respect for
law enforcing officers carrying out their duties. There is a time when even a worst criminal will need the protection of a law enforcement
officer or a court officer or peace officer. These people, like school children at the middle of ‘’a crossing’,
who must be seen and not heard.
31. In homicide (willful murder) cases where a law enforcement officer is killed in the line of duty, the Supreme Court in Ure
Hane v State [1984] PNGLR 105 said that it would be an appropriate case for the maximum penalty of life imprisonment to be imposed when the maximum penalty at
the time was life. The same sentiment was expressed by the Supreme Court in Steven Ume, Charles Kaona & Greg Kavoa v The State
(2006) SC836 in which time the maximum penalty for willful murder is death. If the Court is to adopt the same approach and reasoning when it comes
to with intent to cause grievous bodily harm or wound or maim does cause grievous bodily harm, maim or wound another person who happens
to be a law enforcement, correctional or law officer, the sentence must be severe.
32. Fortunately for the prisoner this case does not fall into the worst category apart from the victim being a policeman, on the
gravity scale when compared with those cases I referred to where the victims were repeatedly attacked mercilessly and left with life
threatening wounds and permanent residual injuries. The victim was cut once but enough to leave him with 100% loss of vision in one
eye.
33. I sentence the prisoner to eight years imprisonment to be consistent with those sentences passed in those cases I referred
to. I deduct one year and four months for time spent in custody awaiting trial. That now leaves him with six year and eight months
to serve.
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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